Future of Roe v. Wade: Bracing for Reversal

01.12.09 -

National Law Journal, Opinion, November 29, 2004Nancy Northup, President of the Center for Reproductive Rights

Will he or won't he? President George W. Bush's re-election has reignited the debate over whether he will nominate U.S. Supreme Court justices who will overturn Roe v. Wade. The president and the expanded Senate majority are anti-choice, but will they act on their beliefs? If the president's nominations to lower courts are any indication, his promise during the debates that he will not apply an abortion "litmus test" for nominees to the highest court rings hollow. Not one of his judicial nominations to date is on record defending Roe, and many are openly hostile.

James Leon Holmes, nominated to a federal trial court in Arkansas, once characterized abortion as "the simplest issue this country has faced since slavery was made unconstitutional." The Senate confirmed Holmes in July 2004. William Pryor, nominated to the 11th U.S. Circuit Court of Appeals, called Roe "the worst abomination of constitutional law in our history." When the Senate failed to confirm Pryor, the president used a recess appointment in February to install Pryor on the bench, effective until January 2005.

Right after the election, Senator Arlen Specter, R-Pa., the presumptive incoming chair of the Senate Judiciary Committee, cautioned that the Senate might reject staunch anti-choice Supreme Court nominees. Under attack from the hard right, Specter explained that he was not throwing down the gauntlet, just stating a political fact.

Of course, the ideal political solution for the president and the anti-Roe forces is to put forth nominees whose position on abortion cannot be discerned during the confirmation process, but who will join the two justices, Antonin Scalia and Clarence Thomas, whose jurisprudential approach the president admires, to hold that abortion may be criminalized from the moment of conception. Pundits say, "It'll never happen" because the Republicans fear a voter backlash. Yet it is not the Republicans who are afraid of the voters right now, and this common wisdom assumes that anti-choice conservatives do not want to achieve their long-sought-after policy goal of reversing Roe. I wouldn't bet my Constitution on that assumption.

As absorbing as the politics of a possible Roe reversal may be, the actual consequences of such a reversal need more attention. Discussion around reversing Roe generally assumes that outlawing abortion would take time, public debate and the legislative process. Not so.

The Center for Reproductive Rights, in a recently released study, What If Roe Fell? The State-by-State Consequences of Overturning Roe v. Wade, found that the legal building blocks for re-criminalizing abortion are already in place in many states. For example, the Arkansas Constitution protects "every unborn child from conception." Or consider the Rhode Island Constitution, which explicitly rejects any reading of abortion rights. Many states have old criminal abortion laws still on the books, some of which have never been enjoined. In Alabama, for instance, enforcement could presumably begin immediately. In states where courts have enjoined the old laws, government lawyers could move to vacate the injunctions and enforce the bans. Moreover, many states have statutes declaring the state's policy to criminalize abortion or protect the life of the unborn.

While the laws are not self-executing, courts could use them to decide that the old abortion bans had not been "implicitly repealed" by the passage of time and new legislation. Given the laws still on the books, the lack of state constitutional protection and the composition of state governments, within a year of a Roe reversal, abortion is likely to be illegal in 30 states, where half of women in America live.

Turning back the clock

Understanding the legal landscape of a Roe reversal, however, hardly gets at the impact. As history and current practice around the world show, women will find a way to have an abortion whether it's legal and safe or illegal and unsafe. According to the Alan Guttmacher Institute, whose research is relied on by all sides of the abortion debate, one in three women in America will have an abortion by age 45.

These women deserve better than a stealth anti-Roe Supreme Court nominee. Indeed, all Americans deserve a full debate over where a high court nominee stands on reversing a constitutional right recognized more than three decades ago. As Justice Harry Blackmun noted in Webster v. Reproductive Health Care Services (1989), "[t]o overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history."